STATE OF JAMMU AND KASHMIR Vs. SHAHEENA MASARAT

JUDGEMENT

(1.) Rehbar-e-Taleem (Re-T) scheme was floated by the State of Jammu and Kashmir on 28.04.2000 for promoting and decentralizing management of elementary education with community participation and involvement. The further object of the scheme was to ensure accountability and responsiveness through a strong backup and supervision through the community and to operationalize effectively the schooling system at the grass roots level. According to the scheme, teaching guides (referred to as 'Re-T ' hereinafter) in primary and middle schools were to be appointed to cover for the deficiency of the staff as per existing norms. An advertisement was published in daily newspaper 'Aftab ' on 29.11.2002. According to the scheme and the advertisement, a candidate seeking appointment as Re-T should be a permanent resident of the State and belong to the village where the deficiency of the staff was assessed. He/she should possess the minimum qualification of 10+2 and the candidate should 'as far as possible ' fulfill the age qualification as prescribed by the State Government. The selection under the scheme for the primary school at Bundook Khar Mohalla Rainawari was conducted in which 11 candidates applied pursuant to the Notification dated 29.11.2002. Respondent No. 2 was selected for appointment as Re-T. Respondent No. 1 filed a writ petition before the High Court of Jammu and Kashmir at Srinagar under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir for quashing order No.12-DDC of 2003 dated 14.05.2003 by which Respondent No. 2 was appointed as Re-T. A learned Single Judge of the High Court dismissed the writ petition by a judgment dated 08.09.2008. Aggrieved thereby, the first Respondent filed an appeal which was allowed by the Division Bench of the High Court. The Division Bench directed the appointment of the Respondent No. 1 as Re-T within a period of one month from the date of the judgment. The High Court further directed continuance of the Respondent No. 2 also. State of Jammu and Kashmir has filed this appeal challenging this judgment and final order dated 13.4.2010 passed by Division Bench of High Court of Jammu and Kashmir.

(2.) The main grievance of the State of Jammu and Kashmir (Appellant) is that the High Court committed an error in directing the appointment of Respondent No. 1 and also continuance of Respondent No. 2. The Respondents were vying for one post of teacher and the High Court could not have directed the appointment of both the Respondents. It was contended on behalf of the first Respondent that the second Respondent had crossed the maximum age limit of 35 years and was not eligible to even apply for appointment as a teacher. The learned counsel for the first Respondent submitted that SRO 30 of 2003 which relaxed the maximum age for appointment of teacher by 2 years is not applicable to the instant case. According to the Respondent No. 1, the learned Single Judge of the High Court dismissed the writ petition erroneously by holding Respondent No. 2 as being eligible for appointment as Re-T on a misinterpretation of the condition relating to upper age limit.

(3.) Respondent No. 2 contended that her appointment was strictly in terms of the advertisement and the maximum age was relaxed as per SRO 30 of 2003 which applied to all selections. The learned counsel for the Respondent No. 2 argued that she was appointed on 17.05.2003 and she has been continuing since then. As her remuneration was not being paid since May 2008, Respondent No.2 filed an interlocutory application in this Court for suitable directions. During the course of hearing of the appeal, this Court was informed that Respondent No. 2 has been paid her salary. It was contended on behalf of Respondent No. 2 that the words 'as far as possible ' are directory and the authorities had power to relax the maximum age beyond 35 years. In any event, according to Respondent No. 2, her appointment should not be disturbed at this stage as she has already served for 18 years.